Thakor Madha Hira (Expired) vs Deputy Collector
2022 Latest Caselaw 9799 Guj

     C/CA/3061/2022                                 ORDER DATED: 06/12/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CIVIL APPLICATION NO. 3061 of 2022

                      In F/FIRST APPEAL NO. 16366 of 2021

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                        THAKOR MADHA HIRA (EXPIRED)
                                  Versus
                            DEPUTY COLLECTOR
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Appearance:
MR JINESH H KAPADIA(5601) for the Applicant(s) No. 1,2
MR TUSHAR CHAUDHARY(5316) for the Applicant(s) No. 1,2
for the Respondent(s) No. 2
MR AKASH CHHAYA, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

                                Date : 06/12/2022
                                 ORAL ORDER

1. Mr Jinesh H. Kapadia, learned advocate submitted that the first appeals arise out of common judgment and order passed by the learned 2nd Additional Senior Civil Judge, Banaskantha at Palanpur in Land Acquisition Reference case nos.590 of 2000 to 609 of 2000. It is submitted that the amount came to be deposited after passing of the award which, was informed by the advocate of the applicants with a request to withdraw the same. It is then that the applicants came to know about the judgment. The amount awarded is Rs.17.40. Subsequently, the applicants also came to know about the first appeals being first appeal nos.4154 to 4157 of 2018 and 4166 to 4167 of 2018 preferred before this Court challenging the very same award. It is submitted that the claimants, are illiterate persons and unable to understand the intricacies of delay which has occurred in filing the captioned appeals. It is submitted that owing

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to the reasons beyond the control of the claimants, that the claimants could not approach this Court in time. Owing to heavy rain fall and other circumstances, that the applicants have suffered a huge loss and were short of funds and hence, could not take further steps. Recently, after collecting the papers and taking necessary advise, it was decided to prefer an appeal. While doing so, the applicants also arranged for the funds towards the Court and professional fees. It is submitted that the claimants, have a very good strong case on merits inasmuch as, the method adopted by the Reference Court is erroneous. Instead of 50%, the Reference Court has deducted 75% on yield method basis.

1.1 Reliance is placed on the judgment in the case of Dhiraj Singh (Dead) Through Legal Representative and Others v. State of Haryana and Others reported in (2014) 14 SCC 127. It is submitted that the Apex Court, has held and observed that while condoning the delay, equities can be balanced by denying the claimants' interest for the period for which they did not approach the Court. It has also been held and observed that the substantive rights of the applicants should not be allowed to be defeated on technical grounds by taking hypertechnical view self-imposed limitations. The Apex Court, has noted that in the matter of compensation for land acquisition, the approach of the Court has to be pragmatic and not pedantic.

1.2 Reliance is also placed on the judgment in the case of K. Subbarayudu and Others v. Special Deputy Collector (Land Acquisition) reported in (2017) 12 SCC 840. The Apex Court, in paragraph 12, has held and observed that with the acquisition of lands, the lifeline of the agriculturist is lost. There may be omission on the part of the claimants to adopt extra vigilance; but the same

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need not be used as a ground to depict them with negligence or want of bona fides. In the case of acquisition of lands of agriculturists, the courts ought to adopt a pragmatic approach to award just and reasonable compensation and not be pedantic in their approach.

1.3 Reliance is also placed on the judgment in the case of Huchanagouda v. Assistant Commissioner and Land Acquisition Officer and Another reported in (2020) 19 SCC 226. It is submitted that similar view has been reiterated. It is submitted that the Apex Court has pointed out that even if the consideration is made on merits after condoning the delay, the determination of the market value will in all event relate back to the date of preliminary notification and as such no prejudice to the acquisition authority nor added advantage to the land loser. The aspect relating to interest can be taken care of by denying it to the claimants for the period of delay. It is therefore urged that considering the position of the claimants, they being the agriculturist and land losers, the delay be condoned; however, the claimants, shall not claim any interest for the delayed period.

2. Mr Akash Chhaya, learned Assistant Government Pleader, on the other hand, has submitted that the delay is enormous and therefore, it ought not to be condoned; however, if the statement of the claimants that they will forgo the interest for the delayed period is accepted then appropriate order be passed.

3. Heard the leaned advocates appearing for the respective parties.

4. In preferring the captioned appeals, there is a delay of 2154 days. It is not in dispute that the applicants, are agriculturist and

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illiterate and not realizing intricacies of the delay, that the steps were not taken. Paucity of funds was also one of the factors which dissuaded the claimants in approaching this Court. The claimants, being illiterate persons and unable to gather fund, to expect them to take steps with vigil would be too much to expect. Mr Jinesh Kapadia, learned advocate on behalf of the claimants has stated at the bar that since there is a huge delay of 2154 days, the claimants would not claim any interest for the delayed period.

5. In view of the said statement made and the principles laid down by the Apex Court in the above referred judgments, in the opinion of this Court, the delay deserves to be condoned and is hereby condoned with clarification that the claimants shall not claim the interest for the delayed period.

6. Apt would be at this stage, the judgment of the Apex Court in the case of Dhiraj Singh (Dead) Through Legal Representative and Others v. State of Haryana and Others (supra). The Apex Court, in paragraph 11, has held and observed that in the matter of land acquisition where land of peasants is acquired, a different approach has to be taken. The person should not be deprived of the reasonable compensation for their lands. Further more, in paragraph 15, it has been held and observed that equities can be balanced by denying the appellants' interest for the period for which they did not approach the Court. The substantive rights of the appellants should not be allowed to be defeated on technical grounds by taking hyper technical view of self-imposed limitations. The Apex Court, has also held and observed that in the matter of compensation for land acquisition, we are of the view that approach of the Court has to be pragmatic and not pedantic. Paragraphs 11, 15 and 16, read thus:

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"11. In the matter of land acquisition where land of peasants is acquired, a different approach has to be taken. These persons should not be deprived of the reasonable compensation for their lands. If other similarly situated landowners are given the compensation @ Rs.200 square yeard, there is no reason to pay the compensation to the appellants at much lesser rate. In this context, we would like to quote the following observation from the judgment dated 29-11-2013 in Imrat Lal v. Collector (LA):

"While we agree with Shri Narender Hooda that the averments contained in the application for condonation of delay were extremely vague and did not provide satisfactory explanation for the long delay of 1110 days, but it cannot be ignored that in identical matters another learned Single Judge had granted relief to the landowners by enhancing the compensation and this factor should not have been overlooked by the learned Single Judge while deciding the application for condonation of delay.

We can take judicial notice of the fact that villagers in our country are by and large illiterate and are not conversant with the intricacies of law. They are usually guided by their co-villagers, who are familiar with the proceedings in the courts or the advocates with whom they get in touch for redressal of their grievance. Affidavits filed in support of the applications for condonation of delay are usually drafted by the advocates on the basis of half-baked information made available by the affected persons. Therefore, in the acquisition matters involving claim for award of just compensation, the court should adopt a liberal approach and either grant time to the party to file better affidavit to explain delay or suo motu take cognizance of the fact that large number of other similarly situated persons who were affected by the determination of compensation by the Land Acquisition Officer or the Reference Court have been granted relief.

In Samiyathal v. Tahsildar decided on 5-7-2013, this Court took cognizance of the fact that many landowners may not have been able to seek intervention of this Court for grant of enhanced compensation due to illiteracy, poverty and ignorance and issued direction that those who have not filed special leave petition should be given enhanced compensation. The relevant portion of the judgment passed in that case is extracted below:

'We further direct the respondents and the State of Tamil Nadu to pay the same amount of

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compensation to other landowners whose land was acquired by the Notification dated 22-5-1991, but who may have on account of ignorance, poverty and other similar handicaps, not been able to approach the Reference Court or may not have been able to contest the matter before the High Court and this Court. The needful be done in respect of other landowners within a period of six months. This direction has been given in exercise of the power vested in this Court under Article 142 of the Constitution.'

In view of the above discussion, the appeal is allowed, the impugned order is set aside and the delay in filing RFA No.5477 of 2011 by the appellants is condoned."

15. Equities can be balanced by denying the appellants' interest for the period for which they did not approach the Court. The substantive rights of the appellants should not be allowed to be defeated on technical grounds by taking hyper technical view of self-imposed limitations. In the matter of compensation for land acquisition, we are of the view that approach of the Court has to be pragmatic and not pedantic.

16. The principles regarding condonation of delay particularly in land acquisition matters, have been enunciated in Collector (LA) v. Katiji, wherein it is stated in para 3 as under:

"3. The legislature has conferred the power to condone the delay by enacting Section 5 of the Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression 'sufficient cause' employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice---that being the life- purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:

(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late.

(2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As

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against this when delay is con- doned the highest that can happen is that a cause would be decided on merits after hearing the parties.

(3) 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

(4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

(5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

(6) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

7. Similarly, in the case of K. Subbarayudu and Others v. Special Deputy Collector (Land Acquisition)(supra), the Apex Court, has held and observed that with the acquisition of lands, the lifeline of the agriculturist is lost. There may be omission on the part of the claimants to adopt extra vigilance; but the same need not be used as a ground to depict them with negligence or want of bona fides. In the case of acquisition of lands of agriculturists, the courts ought to adopt a pragmatic approach to award just and reasonable compensation and not be pedantic in their approach. Paragraphs 11, 12 and 13 read thus:

"11. The term "sufficient cause" is to receive liberal construction so as to advance substantial justice, when no negligence, inaction or want of bona fide is attributable to the appellants, the Court should adopt a justice-oriented approach in condoning the delay. In State of Nagaland v. Lipok Ao, it was held as under:-

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"8. .....Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the court has to go into the position of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause recorded in the peculiar circumstances of the case is sufficient".

12. With the acquisition of lands, the lifeline of the agriculturist is lost. There may be omission on the part of the claimants to adopt extra vigilance; but same need not be used as a ground to depict them with negligence or want of bona fides. In case of acquisition of lands of agriculturists, the courts ought to adopt a pragmatic approach to award just and reasonable compensation and not pedantic in their approach. In Dhiraj Singh v. State of Haryana, it was held as under:-

"15. Equities can be balanced by denying the appellants' interest for the period for which they did not approach the Court. The substantive rights of the appellants should not be allowed to be defeated on technical grounds by taking hyper technical view of self-imposed limitations. In the matter of compensation for land acquisition, we are of the view that approach of the Court has to be pragmatic and not pedantic."

13. When the concerned court has exercised its discretion either condoning or declining to condone the delay, normally the superior court will not interfere in exercise of such discretion. The true guide is whether the litigant has acted with due diligence. Since the appellants/claimants are the agriculturists whose lands were acquired and when similar situated agriculturists were given a higher rate of compensation, there is no reason to decline the same to the appellants. Merely on the ground of delay such benefit cannot be denied to the appellants. The interest of justice would be served by declining the interest on the enhanced compensation and also on the solatium and other statutory benefits for the period of delay."

8. Yet in another decision in the case of Huchanagouda v. Assistant Commissioner and Land Acquisition Officer and Another (supra), the Apex Court, while referring the judgment in the case of Dhiraj Singh v. State of Haryana (supra) has also noted that even if the consideration is made on merits after condoning the delay, the

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determination of the market value will in all event relate back to the date of preliminary notification and as such there is no prejudice to the acquisition authority nor added advantage to the land loser.

9. In the opinion of this Court, considering the factual aspect, in the present case, the judgments apply on all fours to the present case.

10. In view of the explanation offered so also the principle laid down by the Apex Court and applying the same to the facts of the present case, the delay of 2154 days caused in filing the present appeal deserves to be condoned and is condoned with a rider that the applicant shall not claim interest for the delayed period on the enhanced compensation.

11. The civil application stands allowed. Rule is made absolute. No order as to costs.

(SANGEETA K. VISHEN,J) RAVI P. PATEL